Retaliation can come in subtle forms, including negative or unflattering performance reviews, a combative or generally unpleasant working environment, removing some or all of an employee’s duties, cutting an employee’s pay or commissions, moving an employee’s office or workspace to a less desirable location, or restricting an employee’s ability to do his or her job properly or effectively.
Employees in Wisconsin are protected from employment discrimination and retaliation in the workplace by both state and federal laws. In Wisconsin, the state law is the Wisconsin Fair Employment Act (WFEA). Under federal law, employees are protected under Title VII of the Civil Rights Act of 1964, as amended. Generally this federal law is simply referred to as Title VII or the Civil Rights Act.
Retaliation Under WFEA & Title VII
When it comes to retaliation, the protections of the Wisconsin Fair Employment Act and Title VII of the Civil Rights Act are virtually identical.
There are 2 forms of retaliation prohibited by the WFEA and Title VII:
- Retaliation based on participation – filing a charge or complaint or participating in a hearing or investigation
- Retaliation based on opposition to a prohibited practice
Retaliation based on participating in a hearing or investigation protects an employee from being retaliated against for “participating” in the legal process in any way. More specifically, it is usually seen in the context of retaliation for filing a formal complaint, such as a complaint with the Equal Rights Division (ERD) or Equal Employment Opportunity Commission (EEOC).
However, it also protects witnesses from being retaliated against for supporting another individual’s charge. So, if a former coworker asks an employee to testify on his or her behalf against a current employer, the testifying employee is protected from retaliation from his or her employer under the Wisconsin Fair Employment Act (WFEA).
Retaliation based on opposition to a prohibited practice occurs when an employer engages in some form of retaliation against an employee in response to that employee complaining about discrimination in the workplace. The employee does not have to use “magic words” to invoke these protections; however, it should be clear to the person/entity receiving the complaint that the employee is complaining about discrimination.
Further, the employee does not have to be objectively “correct” that what s/he is complaining about actually constitutes discrimination or harassment. The law only requires that the individual complaining holds the belief that what he or she is opposing is discrimination or harassment. So, if an employee complains about something he or she believes is discriminatory or harassing, and it turns out that person was wrong, the initial complaint is still protected and any adverse actions or treatment taken against the complaining employee will constitute retaliation under WFEA and Title VII.
Examples of Protected Opposition to Discrimination or Harassment
For example, if a female employee complains to her supervisor that female employees are being paid less than male employees, the female employee does not have to explicitly say “You are engaging in sex discrimination.” By outlining the discrimination by stating that females are systemically paid less than males, it is clear that the employee is complaining about the treatment of female employees as compared to male employees.
Further, the complaint does not have to be about the treatment of the employee complaining. Using an example similar to the one above with the female employee, if an employee approached her employer about the negative treatment of a female coworker, as compared to the employer’s treatment of male coworkers, the employee’s complaint also is protected.
An employee is even protected during workplace investigations. If an employer is conducting a workplace investigation into an employee’s complaint and Human Resources speaks with another employee as part of its investigation, that employee’s corroboration of the facts or circumstances raised in the other employee’s complaint is also protected. So, if an employee is asked to discuss the conduct of a coworker or the workplace in general as part of an investigation, what that employee says is protected. Thus, an employee does not have any reason to be anything but open and honest with the individual conducting the investigation.
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